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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 101196-2 Respondent, EN BANC v. Filed : __________ May 4, 2023_ DENVER LEE SHOOP, Petitioner.
GORDON MCCLOUD, J.— Denver Lee Shoop kept a small herd of eight
bison on his property. The State charged him with eight counts of animal cruelty
in the first degree in violation of RCW 16.52.205(2)1 for his treatment of those
eight bison.
Subsection (2) of RCW 16.52.205 states that one commits “animal cruelty in
the first degree” when “he or she, with criminal negligence, starves, dehydrates, or
1 RCW 16.52.205 was revised in June 2020, after Shoop’s conviction, to reflect its current form. LAWS OF 2020, ch. 158, § 6. The legislature amended the statute to state that a person is guilty of animal cruelty in the first degree when a person “starves, dehydrates, or suffocates an animal, or exposes an animal to excessive heat or cold.” RCW 16.52.205(2)(a) (emphasis added). The italicized portion is not before us. Because the amendment does not impact the statutory language relied on by this court, we refer to the current statute. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
suffocates an animal . . .” and causes considerable suffering or death. (Emphasis
added.) The State included each of those three italicized ways of negligently
committing animal cruelty in each of the eight counts. The jury convicted Shoop as
charged, without specifying which of those three italicized ways the State actually
proved.
Shoop appealed. He argued, in part, that RCW 16.52.205(2) constitutes an
“alternative means” crime, so either (1) the jury had to achieve unanimity about
which means the State proved beyond a reasonable doubt or (2) the record had to
show that sufficient evidence supported each of those multiple means.2 Neither
occurred in this case. Shoop therefore contends that his convictions must be
reversed.
The Court of Appeals disagreed. State v. Shoop, 22 Wn. App. 2d 242, 510
P.3d 1042 (2022) (published in part). It held that RCW 16.52.205(2) defined a
single crime and a single means, so neither jury unanimity as to “means” nor
sufficient evidence on each of the three “means” were required. Id. at 253.
How to determine whether a statute defines a single means of committing a
crime or alternative means of committing a crime is a recurring and challenging
2 State v. Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87 (2015); State v. Ortega- Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994).
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
question. This case provides an opportunity for us to clarify our precedent on this
point.
We hold that RCW 16.52.205(2) describes a single crime of animal cruelty
in the first degree. That statutory subsection’s list of ways of committing animal
cruelty—negligently starving, dehydrating, or suffocating—constitute “minor
nuances inhering in the same act [or omission],” State v. Sandholm, 184 Wn.2d
726, 734, 364 P.3d 87 (2015), not completely different acts, i.e., not “alternative
means.”
We therefore affirm the Court of Appeals.
FACTUAL AND PROCEDURAL HISTORY
Shoop owned eight bison and he kept them on his property in Chimacum,
Washington. 7 Tr. of Proc. (Oct. 8, 2019) at 1248, 1380. In April 2018, an animal
control officer received a complaint about the health of those bison. Id. at 1247.
The animal control officer investigated the complaint and determined that the
animals needed immediate feeding. Id. at 1249-54, 1269-71. The animal control
officer obtained a warrant to seize the bison and, after seizure, experts confirmed
that the bison were emaciated. Id. at 1270-71, 1327-28, 1339.
The State charged Shoop with eight counts of animal cruelty in the first
degree in violation of RCW 16.52.205(2). Clerk’s Papers (CP) at 30-32 (Third Am.
Info.). Each count pertained to a different bison, and each count alleged that Shoop
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
had mistreated that particular bison in one of the three ways that RCW
16.52.050(2) prohibits: by criminally negligent starvation, by criminally negligent
dehydration, or by criminally negligent suffocation.
The jury instructions tracked the charges. CP at 149-86. Each instruction
pertained to a different bison, and each instruction stated that the jury had to find
that “on an occasion separate and distinct from the act alleged [in the other
counts],” Shoop, “with criminal negligence, starved, dehydrated, or suffocated an
animal” and as a result “caused substantial and unjustifiable physical pain that
extended for a period sufficient to cause considerable suffering.” Id. at 163-70.3
The first trial ended with a deadlocked jury. Id. at 29 (Ord. re: Mistrial). The
State retried Shoop, and the second jury convicted him on all eight counts. Id. at
232 (Felony J. & Sentence—First-Time Offender).
Shoop appealed his convictions.4 Id. at 241. As discussed above, he argued
that RCW 16.52.205(2) creates three separate crimes—what our decisions have
called “alternative means” of committing the RCW 16.52.050(2) crime. He sought
reversal because the jury did not unanimously agree on which of the three means
3 The jury was also provided with an instruction defining the term “starve” as “to deprive of nourishment.” CP at 162. 4 Shoop also appealed his order of restitution. Id. at 281-82. That appeal was consolidated with the appeal of his conviction. 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
the State proved and the State did not provide sufficient evidence to support each
alternative means.
The Court of Appeals affirmed. Shoop, 22 Wn. App. 2d 242. We granted
review to decide whether RCW 16.52.205(2) defines an alternative means crime
and, if so, whether the State provided sufficient evidence of each charged means.
Ord., State v. Shoop, No. 101196-2 (Wash. 2022).
STANDARD OF REVIEW
Whether RCW 16.52.205’s subsection (2) defines one means of committing
animal cruelty in the first degree, or three alternative means of committing that
crime, is an issue of statutory interpretation. We review that statutory
interpretation issue de novo. Sandholm, 184 Wn.2d at 736. We use our usual rules
of statutory interpretation, starting with the plain language of the statute. Id. at 732.
ANALYSIS
I. Criminal Defendants Have a Constitutional Right to a Unanimous Jury, and That Right Leads to Special Rules When the State Charges a Crime with “Alternative Means”
Criminal defendants have the right to a unanimous jury verdict. WASH.
CONST. art. I, § 21; Sandholm, 184 Wn.2d at 732; see also Ramos v. Louisiana,
590 U.S. __, 140 S. Ct. 1390, 1395, 206 L. Ed. 2d 583 (2020).
That rule has significant implications for statutes that list more than one way
of committing a crime. “In alternative means cases, where the criminal offense can
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
be committed in more than one way, we have announced a rule that an expression
of jury unanimity [as to the means] is not required provided each alternative means
presented to the jury is supported by sufficient evidence. But when insufficient
evidence supports one or more of the alternative means presented to the jury, the
conviction will not be affirmed.” Sandholm, 184 Wn.2d at 732 (citing State v.
Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994)); see generally
State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014).
In this case, there was insufficient evidence of suffocation. 5 We must
therefore determine whether the charged crime—animal cruelty in the first degree
in violation of subsection (2) of RCW 16.52.205—defines a crime that “can be
committed in . . . one way [by one means]” or defines a crime that “can be
committed in more than one way [by alternative means].” Sandholm, 184 Wn.2d at
732.
II. Whether a Crime Contains “Alternative Means” Depends on the Statutory Language, and RCW 16.52.205(2) Lists “Consistent” Acts That “May” Inhere in the Same Transaction of Animal Cruelty in the First Degree, Not Three Different, “Repugnant” Means
We start with the statutory language. State v. Smith, 159 Wn.2d 778, 784-
85, 154 P.3d 873 (2007); State v. Linehan, 147 Wn.2d 638, 646-47, 56 P.3d 542
(2002).
5 The State presented no evidence that Shoop suffocated the eight bison.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
The statutory subsection at issue here, RCW 16.52.205(2), provides:
A person is guilty of animal cruelty in the first degree when . . . he or she, with criminal negligence, starves, dehydrates, or suffocates an animal . . . and as a result causes: (i) Substantial and unjustifiable physical pain that extends for a period sufficient to cause considerable suffering; or (ii) death. 6
The inquiry is whether this quoted language—negligently “starves,
dehydrates, or suffocates”—describes “distinct acts” or similar acts. State v.
Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 (2010). If it describes distinct acts,
then each distinct act constitutes a separate means and, hence, a separate crime. Id.
If it contains only different definitions or descriptions of one overall criminal act,
then that one overall criminal act constitutes the single “means” and, hence, the
single crime. See Smith, 159 Wn.2d at 785-86 (definitional instructions for assault
did not describe alternative means). In other words, “[t]he more varied the
criminal conduct, the more likely the statute describes alternative means. But when
the statute describes minor nuances inhering in the same act, the more likely the
various ‘alternatives’ are merely facets of the same criminal conduct.” Sandholm,
184 Wn.2d at 734.
Factors that help us distinguish between “distinct acts” (or means) and
“minor nuances inhering in the same act” include “‘[1] the title of the [statutory]
6 The statute also contains two other subsections. Subsection (1) essentially criminalizes intentionally torturing animals. Subsection (3) criminalizes sexual conduct with an animal. Subsection (1) and subsection (3) are not before us. 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
act; [2] whether there is a readily perceivable connection between the various acts
set forth; [3] whether the acts are consistent with and not repugnant to each other;
[4] and whether the acts may inhere in the same transaction.’” State v. Arndt, 87
Wn.2d 374, 379, 553 P.2d 1328 (1976) (most alterations in original) (quoting State
v. Kosanke, 23 Wn.2d 211, 213, 160 P.2d 541 (1945)).
Some aspects of statutory language are not controlling. For example, the
legislature may use the disjunctive “or” or it may divide a statute into subsections;
those linguistic choices alone do not determine whether the crime contains
alternative means. Sandholm, 184 Wn.2d at 734 (citing Owens, 180 Wn.2d at 96).
The legislature may also provide different definitions or descriptions of a crime;
that descriptive choice is not necessarily dispositive of whether the crime contains
alternative means, either. Smith, 159 Wn.2d at 784-85.
Application of these rules can be difficult. The Court of Appeals has
grappled with whether RCW 16.52.205(2) defines an alternative means crime in
several cases. First, in State v. Peterson, the defendant was convicted of six counts
of animal cruelty in the first degree for starving and dehydrating horses. 174 Wn.
App. 828, 844, 301 P.3d 1060 (2013), abrogated by State v. Jallow, 16 Wn. App.
2d 625, 640, 482 P.3d 959 (2021). The appellate court stated that “starvation,
dehydration, and suffocation are different ways of committing the crime of animal
cruelty in the first degree and are not merely descriptive or definitional but, rather,
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
separate and essential terms of the offense.” Id. at 851. That court affirmed the
convictions, however, because the evidence sufficed to support each alternative
means charged. Id. at 853.
But a few years later, in State v. St. Clare, the concurrence came to a
different conclusion. 198 Wn. App. 371, 383-86, 393 P.3d 836 (2017) (Dwyer, J.,
concurring). In that case, St. Clare argued that RCW 16.52.205(2) was an
alternative means crime and that there was insufficient evidence to prove that she
had both dehydrated and starved her cats. Id. at 380-81. The majority held that the
State presented sufficient evidence of both types of cruelty; for that reason, it did
not address whether RCW 16.52.205(2) constituted an alternative means crime. Id.
at 381-82. The concurrence, however, did reach that issue. It opined that
Peterson’s holding on this point was incorrect, and that RCW 16.52.205(2) does
not constitute an alternative means crime because starvation, dehydration, and
suffocation are different descriptions of essentially the same crime. Id. at 386
(Dwyer, J., concurring). In other words, the concurrence asserted that RCW
16.52.205 created three different “means”—its subsections (1), (2), and (3) —but
that subsection (2) did not create any additional, distinct crimes.
Most recently, in Jallow, the Court of Appeals essentially endorsed the
conclusion of the St. Clare concurrence. 16 Wn. App. 2d 625. The Jallow court
held that RCW 16.52.205(2) defined a single crime, not three alternative means
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
crimes. Id. at 640. The Jallow court reasoned that subsection (2) criminalized
depriving an animal of the necessities of life and that starving, dehydrating,
suffocating, or exposing the animal to excessive heat or cold 7 were simply
different ways of committing that general overall crime. Id. (This panel of Division
One explicitly disagreed with its prior decision in Peterson.)
Our prior, controlling, case law compels us to agree with the result reached
by the concurrence in St. Clare and the court in Jallow: subsection (2) does not
create alternative means but, rather, defines the same general criminal conduct—
“animal cruelty in the first degree”—that the statute prohibits.
We start with the factors that our court typically asks when confronted with
an alternative means issue. As discussed above, we have asked whether the alleged
“alternative means” have a “readily perceivable connection,” whether they are
“consistent with and not repugnant to each other,” and whether “the acts may
inhere in the same transaction.” Arndt, 87 Wn.2d at 379 (emphasis added). In this
case, starvation, dehydration, and suffocation have a “readily perceivable
connection” (describing animal cruelty), they are “consistent with and not
repugnant to each other” (describing a negligent course of conduct that results in
deprivation of food, water, or air), and “the acts may inhere in the same
7 See supra note 1. 10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
transaction” (deprivation of sufficient nourishment or space).8 Id. (emphasis
added). In addition, starvation, dehydration, and suffocation constitute “facets of
the same criminal conduct”—ignoring the animal’s bodily needs—over what could
be the same period of time. Sandholm, 184 Wn.2d at 734. Finally, while not
dispositive, we note that RCW 16.52.205(2) comprises a single subsection, not
“sub-subsections” for suffocation, dehydration, and starvation. See Owens, 180
Wn.2d at 98 (terms in list form indicates legislative intent to treat terms as one
group, not separate alternative means). See generally Smith, 159 Wn.2d at 784
(legislature’s decision to divide RCW 9A.36.021 into subsections showed intent to
treat each subsection as an alternative means of committing second degree assault).
We next examine our application of these factors to particular cases. In
Sandholm, our court was asked whether former RCW 46.61.502 (2008), which
made it a crime to drive under the influence of alcohol, under the influence of
drugs, or under the combined influence of alcohol and drugs, constituted a single
means of committing a single crime or alternative means. 184 Wn.2d at 733. We
8 Shoop argues that starvation, dehydration, and suffocation do not necessarily inhere in the same transaction because a person can commit one of those acts without committing the other. Suppl. Br. of Pet’r at 17-18. But our decisions have held that courts must ask whether the acts may inhere in the same transaction, not whether they must inhere in the same transaction. And starvation, dehydration, and suffocation may inhere in the same transaction (i.e., keeping an animal in an enclosure with insufficient food, water, or ventilation). Additionally, this is one factor of several to consider when determining whether the legislature enacted an alternative means crime. 11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
held that the statute created the single crime of driving under the influence, not
alternative means. Id. at 735-36. We explained that the DUI statute criminalized
one type of conduct—driving while under the influence of certain substances that
cause impairment. Id. The statute described facets of the same conduct
(impairment via alcohol, drugs, or both), but not distinct criminal acts. Id.
Similarly, in Owens, our court was asked whether RCW 9A.82.050(1),
which made it a crime to “‘knowingly initiate[], organize[], plan[], finance[],
direct[], manage[], or supervise[] the theft of property for sale to others,’”
constituted a single means of committing a single crime or alternative means. 180
Wn.2d at 96-97 (quoting RCW 9A.82.050(1)). We held that this first portion of
RCW 9A.82.050(1), the first degree trafficking in stolen property statute, defined a
single crime—in other words, it created only one means of committing trafficking.
Id. at 96.9 The court reasoned that the seven quoted terms did not describe distinct
acts “because of how closely related those terms are.” Id. at 99. The court further
explained that “these terms are merely different ways of committing one act,
specifically stealing,” and that the conduct described did not “not vary significantly
between the seven terms listed in the first clause.” Id. As a result, in Owens, just as
in Sandholm, we concluded that the statute described facets of the same conduct
9 We acknowledged that later language within that same subsection created a separate, alternative means of committing the crime of trafficking in the first degree. Owens, 180 Wn.2d at 98. 12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
(driving under the influence of a substance or substances), but not distinct criminal
acts.
Under the factors discussed above and the reasoning of Sandholm and
Owens, the language “starves, dehydrates, or suffocates” describes different ways
of committing the single criminal course of conduct of negligence resulting in
animal cruelty. While it is true that one can intentionally starve, dehydrate, and
suffocate an animal in different ways, RCW 16.52.205(2) criminalizes a negligent
course of action or inaction resulting in those harms. It could be the same course
of action or inaction that causes all three harms—continuously ignoring the
animal’s physical needs. In fact, the distinctions between starvation, dehydration,
and suffocation are similar to what we treated as minor distinctions in Owens
between “‘initiat[ing]’” a theft and “‘financ[ing]’” a theft: initiation and financing
require different physical actions but define the same general conduct of promoting
stealing. Owens, 180 Wn.2d at 96 (quoting RCW 9A.82.050(1)). The distinction
between these three types of harms—starvation, dehydration, and suffocation—are
also similar to what we treated as minor distinctions in Sandholm between
impaired driving due to alcohol, due to drugs, or due to alcohol plus drugs: taking
drugs and drinking alcohol require different physical actions but define the same
general conduct of driving while impaired.
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
The legislature criminalized animal cruelty in the first degree by means of
negligence leading to deprivation of food, water, or air. These separate ways of
committing animal cruelty are no more varied than the separate ways of
committing DUI or theft discussed above. 10
We therefore hold that RCW 16.52.205(2) defines a single crime, not three
alternative means of committing essentially three separate crimes. We disavow the
statement in Peterson to the contrary. 174 Wn. App. 828. Because RCW
16.52.205(2) defines a single crime, we do not address whether the State provided
sufficient evidence to prove each of the alleged “means” (starvation, dehydration,
or suffocation) beyond a reasonable doubt.
CONCLUSION
RCW 16.52.205(2) defines a single crime, not three alternative means of
committing essentially three crimes. We affirm the Court of Appeals.
10 Shoop also argues that the legislature could not have intended to criminalize the failure to provide all “the necessities of life” in RCW 16.52.205(2) because a different statute in the same title criminalizes failure to provide other necessities of life. Shoop points specifically to RCW 16.52.207, animal cruelty in the second degree, which criminalizes an owner’s failure “to provide the animal with necessary shelter, rest, sanitation, space, or medical attention.” RCW 16.52.207(2)(a); Suppl. Br. of Pet’r at 16. We disagree. The fact that the legislature chose to punish certain forms of animal cruelty more harshly than other forms of animal cruelty is a choice that the legislature can make. That choice has no bearing on whether “starves, dehydrates, or suffocates” constitute alternative means of committing animal cruelty in the first degree. 14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Shoop (Denver Lee), No. 101196-2
WE CONCUR: